[2024] UKUT 00066 (IAC)

Abdullah & Ors (EEA; deportation appeals; procedure)

Heard at Field House

THE IMMIGRATION ACTS

Promulgated on 28 February 2024

Before

UPPER TRIBUNAL JUDGE KEBEDE

UPPER TRIBUNAL JUDGE RINTOUL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

ZAIN-AL-ABIDIN ABDULLAH

Respondent

and

AIRE CENTRE

Intervenor

AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

ADRIAN ANDRZEJ SZUBA

Respondent

and

AIRE CENTRE

Intervenor

AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

ROKAS RUDOKAS

Respondent

and

AIRE CENTRE

Intervenor

Representation:

For the Secretary of State: Ms J Smyth and Ms K Elliot, instructed by GLD

For Mr Abdullah: Ms I Sabic KC and Ms E Doerr, instructed on a Direct Access basis

For Mr Szuba: Ms G Patel, instructed by A & M Solicitors

For Mr Rudokas: no appearance

For the AIRE Centre: Mr T Buley KC, Ms B Asanovic and Mr A Shattock,

AIRE Centre

(A) In an appeal where conduct prior to 11pm on 31 December 2020 gives rise to a decision to deport an EEA citizen is in issue, it is necessary to determine whether, as at 31 December 2020 (and at the point a decision is taken):

(1) Was the EEA citizen resident in the United Kingdom?

(2) If so, for what continuous period (as defined in reg 3 of the EEA Regulations) before that?

(3) Was the EEA citizen’s residence lawful, that is, in accordance with the EEA Regulations?

(4) Had the EEA citizen acquired permanent residence under the EEA Regulations?

(5) Had the EEA citizen made an application under the EUSS before the end of the Grace Period, that is 30 June 2021, and

(6) If so, is it pending?

(B) The answers to these questions will determine whether the EEA citizen came within the scope of the Withdrawal Agreement, the Grace Period Regulations or the EUSS. They will also determine whether that individual is a “relevant person” for the purposes of section 3 (5A) and (10) of the Immigration Act 1971 and section 33 (6B and (6C) of the UK Borders Act 2007, as expanded by regs 3(4) and 12(1)(b) of the Grace Period Regulations.

(C) In respect of conduct carried out prior to 31 December 2020, the EEA Regulations only apply directly to an individual (and thus gave rise to an appeal under those regulations) if:

(1) The decision was taken under the EEA Regulations prior to 31 December 2020 or in connection with an application pending under the regulations; or,

(2) The individual was an EEA citizen (or a family member of such a person) lawfully resident under the EEA Regs (including those who had acquired permanent residence under reg 3. the EEA Regulations) and either:

(i) The decision was taken by 30 June 2021; or

(ii) Was taken after that date but when a valid application under the EUSS had been made before 30 June 2021 and was still pending (but not if they had been granted leave under the EUSS); or

(3) Is a person who falls within the scope of the CRRE Regulations

(D) With the passage of time, the class of individuals falling under the EEA Regulations and entitled to a right of appeal under those provisions will diminish to very small numbers.

(E) If a decision to deport was not made under the EEA Regulations, then there is no right of appeal under those regulations.

(F) In an appeal under the CRA Regulations, it will be necessary to consider the application of reg.27 of the EEA Regulations. This can arise under either ground of appeal as:

(1) if the EEA citizen is within the scope of the WA, then articles 20 and 21 of the WA apply;

(2) if not in scope of the WA, the definition of deportation order is such that only one which is justified by reference to reg.27 of the EEA Regulations makes the EEA citizen ineligible for a grant of status under the EUSS.

(G) There is a distinction between (1) and (2) because under the definition of deportation order under the EUSS, only 5 years continuous residence (as opposed to lawful residence under the EEA Regulations) is needed to acquire enhanced protection.

(H) The effect of a finding that the deportation is not justified by reference to reg 27 of the EEA Regulations is that Exception 7 under section 33 of the United Kingdom Borders Act 2007 is met, and the Secretary of State’s policy is then to revoke any deportation order, at which point leave to remain under the EUSS can be granted.

(I) If the deportation decision against an EEA citizen arises in a human rights appeal under section 82 of the 2002 Act, then that appeal should be stayed pending resolution of any outstanding application under the EUSS to allow an appeal against a negative decision to be determined as the same time as a human rights appeal.

(J) Where an appeal has been allowed under the EEA Regulations; or, in an appeal under the CRA Regulations on the basis the deportation decision is not justified by reference to reg 27 of the EEA Regulations, it follows that any linked appeal against the same decision under section 82 of the 2002 Act will be allowed on the basis that the decision under appeal was not in accordance with the law.

Preliminary matters

Abbreviations